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Doe v. City and County of Honolulu3/15/2000
f emotional distress.
By definition, "an error . . . in professional practice, by a health care provider, which proximately causes death, injury , or other damage to a patient" is a "medical tort." In light of the statutory definition of "medical tort," and Dubin, we conclude that "COUNT VI -NEGLIGENT HIRING/RETENTION" alleges a "medical tort" as against Defendants-Appellees.
B.
Jane contends that the City, the DOH, and Lanzilotti are not "health care providers" because
he employer-employee relationship in the instant case is not in any way related to the duties surrounding medical malpractice, but questions the employer's proper selection, screening and retention of its employees. Clearly, such an action against an employer was not intended to be covered by HRS Chapter 671.
As dictated by the statutory intent, [Jane's] claims against her employer for vicarious liability stemming from an employer-mandated physical examination are not under the jurisdiction of the [MCCP].
We have previously concluded that Count IX (punitive damages) is not a count.
We have previously noted that HRS § 671-1 defines "medical tort" as, among other things, "an error . . . in professional practice, by a health care provider."
We have previously noted that HRS § 671-1 states that "'health care provider' means a physician or surgeon licensed under chapter 453 [Medicine and Surgery], a physician and surgeon licensed under chapter 460 [Osteopathy], a podiatrist licensed under chapter 463E, a health care facility as defined in section 323D-2, and the employees of any of them."
We have previously noted that HRS § 323D-2 defines a "health care facility" as including "any program, institution, place, building, or agency, or portion thereof, private or public, other than federal facilities or services, whether organized for profit or not, used, operated, or designed to provide medical diagnosis."
One of the definitions of the word "diagnosis" is
he art or act of recognizing the presence of disease from its symptoms, and deciding as to its character, also the decision reached, for determination of type or condition through case or specimen study or conclusion arrived at through critical perception or scrutiny. A "clinical diagnosis" is one made from a study of the symptoms only, and a "physical diagnosis" is one made by means of physical measure, such as palpation and inspection. Black's Law Dictionary 453-54 (6th ed. 1990).
The relevant question is whether the City, the DOH, and Lanzilotti come within the HRS § 323D-2 (1993) definition of "health care facility." The answer is yes. Lanzilotti was "sued in his official capacity as Director of the DOH and/or as an agent and employee of the DOH of [the City]." As previously noted, Jane's Complaint alleged in relevant part that " s a Police Officer of the Police Department of [the City] . . . , [Jane] was required to pass a physical examination conducted by a physician." That "physical examination" was a "medical diagnosis."
In other words, in the context of this case, the City, the DOH, and Lanzilotti fit within the definition of "health care facility" and "health care provider" and, as to them, each of the eight counts alleges a "medical tort." Thus, Jane's eight counts against them must be submitted to the MCCP before Jane may commence a suit.
CONCLUSION
Accordingly, we agree with the result of the August 6, 1998 "Order Granting (Without Prejudice) Defendants City and County of Honolulu Department of Health, City and County of Honolulu and Salvatore Lanzilotti's Motion to Dismiss Complaint Fi
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